MIAMI HERALD BAKES A FAREWELL CAKE FOR MAYOR PHILIP LEVINE

“MIAMI BEACH Bribery attempts drop, but they still happen,” declaimed the headline at the top of the front page yesterday.

That was followed by the subheading: “A survey reveals that 22 percent of Miami Beach public employees say they’ve been offered a bribe at some point in their career.” The employees were not asked if they accepted bribes. Pray tell.

That percentage does not jibe with a subsequent statement about the December 2016 survey that of “218 employees in departments most likely to be targets of bribery… 100 reported having been offered a bribe as some time in their career.”

Well, 100 divided by 218 is 45.9 percent, not 22 percent, but never mind that because the timing of “sometime” makes meaningful comparison impossible, and so does the rest of an incomplete hodgepodge of statistics from several years of surveys instead of a straightforward table of side-by-side statistics for all categories.

The employees were not asked if they accepted bribes, and the report does not say whether employees who said they received offers were asked to identify the persons who offered the bribes so an attempt could be made to corroborate their statements or law enforcement alerted to keep an eye on them.

Of course there is a difference between a free lunch and a cash donation, and lunch will probably be declined.

What is clear is that the report takes the cake, that it is a liberal propaganda piece bidding Mayor Philip Levine—a wealthy media mogul who was himself disgraced for soliciting campaign contributions from developers of city properties—farewell forever because his political career has been washed up with the defeat of his great friend Hillary Clinton.

The “Get It Done” mayor’s vainglorious demeanor and censorious conduct alienated honest reporters to begin with. What followed turned many of his followers against him, although he certainly is not to blame for everything that has gone wrong.

Exposure of public corruption is improbable because the parties to it are unlikely to confess to it unless someone rats them out or law enforcement gets something else on them and offers them a deal.

The administration has made that more difficult, for example, with its software upgrades, making it inconvenient for delators to confidentially access online building permit and inspection records, requiring them to identify themselves and obtain permission from the owners. And that is not all to show that the often advertised “increased transparency” is a canard in respect to some crucial records.

The administration has also replaced municipal magistrates or “special masters” who hear code violation cases with virtual stooges who provide no meaningful review for the discriminatory policymakers who are their masters.

The city has in the past refused to adopt a county whistleblower ordinance to encourage informers to come forward.

The county ethics commission, a retirement farm for prosecutors, is a joke on Miami Beach taxpayers despite its randomly correct findings. Just prior to the last wave of arrests, its director, Joe Centorino aka “Sleeping Joe” declared at a meeting with bloggers that Miami Beach had cleaned itself up, and when a reporter noted that, bullied him by email. The Miami Herald has ignored numerous reports of inadequacy of that commission as well as allegations of Miami Beach corruption, not to mention the commission’s egregious violation of public disclosure law when its commissioners were filmed whispering behind folders at a meeting.

The result of the ethics commission’s recent “investigation” into allegations made by one Antonio Halabi damned the commission to infamy for its lack of due process: the commission forwarded his allegations, including evidence that the city manager had raised himself above the law, to city officials. The accused naturally responded in the negative; the commission took their word for it and dismissed the case without offering Mr. Halabi an opportunity for rebuttal.

That is not all that demonstrates the incompetence and selective enforcement of the ethics commission and the bullying attitude of its director when his investigations are criticized.

Now here we have another condignly unbalanced report from the Miami Herald, representing the so-called fourth branch of government that is in actually part of the real fourth branch, the bureaucracy, posing as news in a way that suits the very definition of “fake news,” false inferences from survey facts that do not really indicate facts at all.

The city is congratulated for taking an expensive ethics course run by the county ethics commission, a notion that was scoffed at by the likes of Commissioner Ed Tobin, because even a moron knows what corruption is. Or maybe not, because when wrong is done long enough, wrong seems right.

Mayor Levine and the majority of commissioners he sponsored waived the city’s ethics requirements so that Commissioner Tobin could apply for the police job while sitting on the commission. Levine lauded Tobin, and said he would like to similarly waive the ethics code for himself. But when the commissioner crossed him, he accused him of being unethical, leaving us to wonder why the commissioner failed to pass the ethics test given under the purview of the mayor’s new police chief, forcing him to get at police officer job on the mainland with the City of Miami,

Mr. Levine may be one of the most ethically challenged mayors to sit on the dais since the notorious Mayor Alex Daoud. Just for example, millions were paid by the city for the air rights above the Sunset Harbour shopping center owned beneficially by him and his great friend and partner Scott Robins, and then, while mayor, he attempted to push through zoning to his advantage; the ludicrous premise handed down by the state ethics commission was that the advantage to him would not be immediate. This time, however, the county ethics commission did not put its nose where there is no sunshine.

The city also is applauded for the allegedly improved morale of its employees, who “felt” they have better whistleblower protection. The mayor naturally “thinks” there has been “a tremendous change in culture” under his tenure.

Please “think” and “feel” again, because thinking in itself is not knowing, neither are self-congratulatory feelings.

Critical thinking is indeed useful, so think again about what deposed Mayor Matti Bower said after Mr. Levine was crowned a strong mayor over his court of faux reformers as his prime minister bragged about the number of people fired, leaving key people around in honey pots such as the problematic Building and Code Enforcement departments for years, yet now saying key staffers were replaced.

City workers, averred Madame Bower, a grandmotherly politician who was friendly with scores of employees, reported they said they had been cowed by the new regime. That is, fear and intimidation was the rule.

We all know the corporate drill: you had better have a good attitude and be positive about us or you had better find another job.

Here is something else to “think” about: The “indicative” statistics quoted by the Miami Herald are meaningless in terms of “indicating” facts. South Florida is by virtue of its Third World influences perhaps the most corrupt region in the United States. Federal law enforcement is charged with curbing corruption of the local, county and state police power in all departments, but with a deliberately limited staff. Economists have even declared that a certain degree of corruption is good for business. Republicans led by President Trump may desire to cut the FBI staff in half. Miami Beach is a drop in the bucket. Arrests there come in intermittent waves as a handful of investigators work priorities from place to place. When Miami Beach is hit, corruption may decline for awhile, and lessons are learned as to how to avoid detection.

Now the Miami Herald also reports that the $3.5 million recently plundered from city coffers, an event that led to the departure of finance department staff, “remains unsolved and under investigation.”

The mayor’s wealth sidekick on the dais, Commission Rick Arriola, told the Huffington Post that the matter is under investigation, that the city will get back every penny. and that “audits are the responsibility of the city’s outside auditors and the city’s CFO.”

What a ridiculous statement that is, for the problem is that the finance department and auditors did not bother for ages to reconcile cash balance on books to cash in bank, a routine bookkeeping procedure.

Mr. Arriola would surely fire his controller and bookkeepers for failing to detect the imbalance in a month if not in a day given the modern software relations between banks and their clients. Since he is so sure of recovery, he should personally guarantee it, as the amount is rather miniscule for him given his good fortune.

By the way, the attack pieces of the Huffington Post were so imbalanced that I was tempted to rebut them and give the mayor some little credit for the hundreds of millions allocated for the war against global warming. At least we are not wading around in knee-deep water in South Beach.

Yet it is high time that a major media outlet took the mayor and his ilk to task despite more threats of SLAPP libel suits. It is safer to do so now that his great friend Hillary Clinton has gone down in flames.

But the Miami Herald must “feel” sorry for the mayor, and “think” that it has a duty to boost from time to time the official sources needed bolster its sales. Therefore we have this astonishing farewell cake baked for Mayor Philip Levine

CITY OF MIAMI BEACH SHUTS DOWN ONLINE BUILDING PERMIT SEARCH FOR GENERAL PUBLIC AND HINDERS ACCESS TO RECORDS BY REQUIRING PUBLIC RECORD REQUESTS AND FEES AS A RESULT OF EMBARASSING DISCOVERIES BY PUBLIC INFORMERS

“CAN I VIEW PERMIT HISTORY ONLINE?Permits issued for any property in the City of Miami Beach from 1990 to 04/26/2016 are available through Velocity Hall Online Permitting.

Note: If you are not either the owner, contractor, engineer, architect or owner representative, you will not be able to register at the Citizen Access Portal and therefore; may submit a public records request to the Building Department’s Records Management Section. Click here to download the Records Request Form

MIAMI BEACH HOTEL APARTMENT OWNER ACCUSES CITY ATTORNEYS OF DISHONESTY AND FRAUD ON THE COURT

June 20, 2015

By David Arthur Walters

PRESS INDEPENDENT

Rod Eisenberg, owner of the historic 80-year old Sadigo Court Apartment Hotel in South Beach, accused City of Miami Beach attorneys in a June 4, 2015 filing in federal court of dishonesty; to wit, of making blatant and gross misrepresentations and brazenly false arguments supported by convenient cutting and pasting together of statutes as part of a massive scheme to deceive, mislead and defraud the courts where he had lodged complaints to defend his property and his civil rights after city officials conspired to throw his guests onto the street, close his apartment hotel, and subject him to false arrest because he refused to voluntarily install fire sprinklers that were not really required for his historic structure.

His previous filings asserted that he was persecuted by the city in retaliation for 1) his exposure of corrupt practices in the early 1990s, and 2) for his complaints about non-enforcement of code provisions in respect to blight in his neighborhood, and 3) for failing to bribe code enforcement officers.

Eisenberg discovered that the city’s bid selection process was corrupt in 1993 after bidding to rent space at the old city hall building for a Welcome Center. That motivated him to take city officials to task on other matters.

He learned the winning bidder was receiving free rent in the Old City Hall during the bid challenge. He also discovered a City commissioner and his son had received what amounted to an illegal brokerage commission on a $10 million real estate transaction. He subsequently embarrassed city officials by disclosing his findings to the media.

As a result of those disclosures and his lawsuit against the city, a scandal ensued that ultimately led to the city manager resigning, and the city attorney being forced out. Some of the current city attorneys including City Attorney Raul Aguila were involved in that case. I have examined Raul Aguila representation of the city in other matters, and found him to be quite fair in comparison to his predecessor, Jose Smith, who seemed to believe that the city was not the community but the ruling regime, and indeed acted like he was the city itself, although he was right more times than he was wrong—he was nicknamed “The Magic Eight Ball.” So Aguila’s stance in the Eisenberg Affair astonished me.

Furthermore, the discovery process Eisenberg brought against the city back then revealed apparent hanky panky between city officials and an officer of IRAMCO, the broker involved in City of Miami Beach Redevelopment Agency’s purchase of land for the development of the city’s first convention hotel, now Loews Hotel at 1601 Collins Avenue.

Between 2004 and 2009, Plaintiffs and others in the neighborhood voiced many complaints about the health and safety risks and Code compliance violations of an abandoned hotel in the neighborhood. The City investigated some of those complaints but did not resolve the problems with the building.

In December 2011, fifteen police offers, ten code enforcement officers, including Jose Alberto, and five fire officials forcibly shut down the Sadigo for a second time for allegedly violating city fire codes for refusing to install fire sprinklers in the three-story structure. Yet Les Beilinson, a renowned architect and historic preservationist, called the Sadigo “one of the safest buildings I have ever been in” during a 2010 Task Force hearing.

The shut down occurred while the Sadigo was hosting the ‘Pool Art Fair’ during the Art Basel Miami Beach art show, forcing guests to vacate the premises within the hour. Jose Alberto, later convicted and imprisoned for corruption elsewhere, allegedly offered to solve Eisenberg’s problems by using his people, insinuating a bribe would be due from Eisenberg. I estimate from information of past incidents the handling fees might have amounted to $500 for six people, or $3,000. When Eisenberg refused by stating he already had legal counsel working on the matter, Alberto allegedly stated that Eisenberg would not get far using legal means. Eisenberg was then arrested. In April 2012, Alberto and other code compliance officers and fire department inspectors were arrested for bribes they accepted in June 2011.

Since those arrests, the Sadigo has not received any further code compliance notices or violations, according to a recent brief filed in the federal case; however, a $400,000 lien was filed against the property for a fine accruing at $500 a day. Eisenberg has laid out an estimated $450,000 in attorney fees and is being sued for another $200,000 in fees he refuses to pay his attorneys for losing the case. The loss in revenue from the extended closure of the hotel along with damage to his reputation may amount to another $1,000,000. Now that the federal judge had summarily dismissed the case, ensuring that his complaints will never be heard by a jury, the city has filed what appears to be a patently frivolous motion for sanctions for an amazing $800,000 in legal fees and costs for taking him to hell and back, refusing at all times to compromise with his attorneys.

Eisenberg is no slouch when it comes to the practice of law. He trained as an attorney. He did not apply for a license, apparently because he eventually believed the profession is essentially unethical. The allegations he has brought pro se in response to the city’s motion for around $800,000 sanctions indicts not only the city attorneys but his own attorneys as well. He claimed that they colluded wittingly or unwittingly to keep the case going in order to use him as an ATM machine.

“Although there is no guarantee of success in civil litigation, a plaintiff must be certain his attorneys are not succumbing to the City’s arguments because they would rather treat their client like an ATM, rather than vigorously advocate their client’s positions. Opposing counsel points out that plaintiff had so many lawyers and he still lost every time. And although this may be true, the reason is every lawyer, except one or two, had the propensity to do things harmful to the client, while remarkably always beneficial to the City.”

In retrospect, it is astonishing that the city attorneys, blessed by the city commission, would lay out $800,000 in taxpayer money to persecute this businessman instead of negotiating a compromise. And now they expect to bring the owner of this safe little three-story hotel to ruin by forcing him to pay for their destructive maneuvers. Why, their motion to sanction fees and costs is itself frivolous, supported by a spurious argument that his suit against the city was frivolous because he lost it as a consequence of their malevolent machinations.

We like to believe that the law is as solid as a rock, that there is a very high probability that similar cases will be similarly decided. The truth of the matter is that the positive law is what judges decide from day to day, and that law is always subject to change with the excuse that it should evolve, glacially or not, with the so-called progress of civilization. Forsooth, litigation is a gamble because no one knows for sure what some judge may decide given her prejudices and institutional blindness. Controversy keeps the clock ticking for fees accruing at a rapacious $500 per hour or even more for well connected lawyers.

Judges talk about principles of law and the high ethical standards of the legal profession. In sum, the principle of lawyers is profit in a zero sum game. A law-schooled lawyer in our competitive economy is likely to become a sophist who will do his level best to make even the worst case sound like the best. Overall, the size of the war chest and not the elements of law and highfalutin ethical standards win the battles in the never ending war of all against all. Ironically, the opportunities for litigation and the hordes of attorneys available to resolve differences for a fee is said to be what makes America great.

At least Federal Judge Cecilia M. Altonaga almost brought the billing to an end with her summary rulings, exhibiting the usual prejudice in favor of governmental authority, that it should enjoy the sovereign immunity of a queen or king unless virtually impossible exceptions could be proved. There is a saying that one cannot fight city hall and win, and for good reason.

Eisenberg’s suit for recognition of his civil rights was based on the 1871 Ku Klux Klan Act. Few cases were brought, only a handful were won, and the sections of the act cited by Eisenberg’s lawyers laid dormant for many years until they became a handy instrument for harvesting civil rights controversies for fees.

The Radical Republicans back then figured that federal judges would decide independently of local prejudiced judges and juries. That might hold true if the federal judges were riding a broad circuit. Once resident in the place where cases are decided, judges inured with the local prejudices and institutional blindness of their colleagues. Face it, the judge is more likely to sit with her public attorney kin in the lunchrooms. At least she is prone to sympathizing with them because they are constantly under attack for their decisions. And Judge Altonaga is a human being first of all; she is no stranger to South Florida. Its dominating Cuban?American community wanted to see her sitting on the United States Supreme Court. She was reportedly on President George W. Bush’s short list for the nomination.

Eisenberg’s motion against the sanctions claims that his attorneys decided it would be best of focus on the weakest aspect of his case, that the city was retaliation against him for speaking freely.

That would be sexier, they thought, than emphasizing his strongest point that the city was discriminating against him, not affording him with the equal protection of the laws. Many apartment buildings with short term rentals were not harassed for not having fire sprinklers. Some owners had voluntarily installed sprinklers. He was being picked on.

His brief against the assessment of the city’s fees claims that his attorneys figured juries would be too stupid to understand the equal protection issue, even though, Eisenberg would argue, the issue is rather simple. But I shall provide my own analysis of relevant legal requirements instead of his KISS argument:

Chapter 509-215 of Florida’s firesafety law states that public lodging establishments of three or more stories that have interior corridors without direct access to external means of egress must install sprinklers. The three-story Sadigo does not have interior corridors; the second and third floor apartments have stairs descending to ground level. There are also stairs to the rooftop

And Chapter 509 requires that buildings up to 75-feet high that do have direct adequate external means from guest areas for escape from fire and smoke must have sprinklers if erected prior to 1983.

These provisions apply only to those public lodging establishments in a building wherein more than 50 percent of the units in the building are advertised or held out to the public as available for transient occupancy.

And there is a special exception for historic buildings. The statute refers to national fire prevention standards adopted as law by Florida that mentions systems equivalent to automatic sprinklers. Eisenberg argues that his three-story building has an adequate fire and smoke protection system, which he upgraded at a cost of $40,000 at the city’s request, and is absolutely exempted from the equivalency standard because the intention of the law for historic structures is to prevent disturbing, altering, or destroying their integrity by forcing the installation of fire sprinklers OR alternative systems equivalent to automatic fire sprinkler systems.

Eisenberg claimed that the city attorneys deliberately deceived or lied to the judge about this feature of the law, and that several experts as well as his attorneys were also deceived into becoming “shills” for the city and fire sprinkler companies. His notion that he had become an ATM machine for attorneys on both sides is supported by a June 1, 2015, Notice of Resolution discovered on the docket whereby the city attorneys had resolved their claim for fees against his attorneys, and therefore they were pursuing Eisenberg for the $800,000, despite the evidence that Eisenberg had bowed to his attorneys’ wishes that he trust them as his lawyers to present the correct theory of the case and arguments to the court. How can the court hold him alone responsible for fees to defend against frivolous and groundless arguments, if that is what they were, and not his attorneys, when he relied on their advice in the pleadings? In fact, the rule appertaining to sanctions allows the judge to hold the attorneys signing the pleadings responsible.

Right or wrong, everyone was aboard the same ship, naturally unwilling to cross the source of a great deal of bread and butter. Eisenberg, who has been called a sore loser by the press and a crybaby by city attorneys for fighting for his constitutional rights, was denied equal protection of the laws as a so-called class-of-one. In reality there are hundreds of people in that Category of One who are afraid for good reason to confront the city’s legal mafioso who are no doubt gloating over Eisenberg’s defeat.

The 80-year old Sadigo had been partially occupied by transient guests as was the custom for decades on the beach. Eisenberg had a state license for transient use and was paying resort taxes to the city. The trouble began when he pulled a permit to dedicate some space for preparation and storage of cold food for his Art Basel visitors. City inspectors then defined that space as a “restaurant” although no food was to be sold there to the general public, and reclassified it as a “new” structure. Eisenberg declined to have their guys fix the problem or impliedly pay a bribe after code enforcement insisted that the transient apartment building was a brand new hotel that would have to comply with the fire code of a new hotel instead of an existing hotel. “Transient” occupancy, which allows for two transient uses in the district, is the overriding word: The change from transient apartment to transient hotel, Eisenberg argues, was merely a change in paperwork nomenclature, both uses being allowed within the general occupancy zoning of the neighborhood. Wherefore the Sadigo could not be classified as a new building since the occupancy was essentially the same, i.e. transient.

City officials, especially the clan of city attorneys, apparently had a vendetta going against him as if he were an enemy of the state. Right or wrong, everyone but he was aboard the same ship, naturally unwilling to defy the source of a great deal of bread and butter. Wherefore he was denied equal protection of the laws as a so-called class-of-one inasmuch as only his historic building was selected out of many for specious enforcement. His attorneys, apparently believing equal protection abridgement would be hard to sell to a jury, did not have detectives go out and get comparables to show that similar buildings were allowed without sprinklers, and that he was being picked on because he did not bend over for them. He has apparently now retrieved a list of comparables on his own.

Before I was aware of the Eisenberg Affair, I myself had pointed out that a friend of Eisenberg’s, Scott Robins, an influential developer who has partnered with Mayor Philip Levine in several projects, had operated a transient hotel, the Espanola Suites on Espanola Way, above two restaurants with hot kitchens for several years, and according to the city has not paid resort taxes, after the city denied him a certificate of use. An inspection report available from his recent effort to obtain a certificate for hotel use indicates that the sprinkler system installed during a previous renovation, which may not have been permitted by the city is inadequate for the hotel use. It was only after pressing the issue with Hernan Cardeno, Director of the Code Compliance Department, that Espanola Way Suites was cited and then referred to the Special Master. No explanation was forthcoming from Cardeno was to why the hotel guests were not evicted and the owner arrested as was the case in the Eisenberg Affair. The problem with reporting violations to expose the negligence and corruption of the government is not only retaliation by the officials, but retaliation from the businesses that one would rather not offend.
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In any case, Judge Altonaga tossed out Eisenberg’s equal protection argument, in her first round of dismissals in the Summary Judgment Game, for lack of the comparatives that Eisenberg’s attorneys did not collect and press.

And then she tossed the supposedly sexier free speech cause, ruling that it was moot because a principle of current common law, or how judges interpret statutes lately, is that the city itself cannot be held liable for civil rights violations unless it makes the discriminatory policies. It was subject to county review, she said.

Well, then, the problem there is that the county is subject to the state, and the state is immune pursuant to the current misinterpretation of the Eleventh Amendment to the United States Constitution. So nobody is liable.

Judge Altonaga’s institutional blindness to the fact that the city tailor made the policy to put Eisenberg out of business is profound, as can be seen by anyone who thoroughly examines the behavior of the officials concerned and fully understands the confusing hodgepodge of state statutes.

As for the policymaker concept, that is the result of the interpretive vacillations of the also fallible justices of the U.S. Supreme Court. At first it was believed the Congress back in 1871 did not intend municipalities to be “persons” subject to suit to recover damages for civil rights violations. Minds were changed about that, and may and should be changed again, so that such entities are liable for damages for their employees’ behavior, as is the case with businesses. History is again and again conveniently abused to justify current desires.

Eisenberg cited several mistakes made by his lawyers. I note that they did not sue the officers themselves along with the city, which they might have done knowing they might be confronted by sovereign immunity, which is based on the notion that “the King can do no wrong.”

But the King can do wrong, and be beheaded as a consequence. If Eisenberg is right, some heads should roll at city hall. He must have something planned. He is not talking, having learned his lesson the hard way about speaking freely.

# #

Facsimile of Document Retrieved From Public Records
Response to City’s Motion for Approximately $800,000
in City’s Legal Fees and Costs
?

IN THE UNITED STATES COURT
SOUTHERN DISTRICT OF FLORIDA
ROD EISENBERG, and EISENBERG
DEVELOPMENT CORP., a Florida
Corporation, d/b/a SADIGO COURT
APARTMENT HOTEL, Plaintiffs,

vs.

CITY OF MIAMI BEACH,
Defendant,
CASE NO.: 1:13-CV-23620-CMA

PLAINTIFF ROD EISENBERG’S RESPONSE TO DEFENDANT CITY OF MIAMI BEACH’S MOTION FOR ENTITLEMENT TO FEES, COSTS, AND SANCTIONS

“I will employ, for purposes of maintaining the causes confided in me such means only as are consistent with truth and honor, and will never seek to mislead tile judge or jury by any artifice of false statement of fact or law.. ”
Supreme Court of Florida, Oath to the Florida Bar, 2011

The Plaintiff, Rod Eisenberg, Pro se, adopts co-counsel’s Response pleading, with its memorandum of law, and files this its own Response to Defendant City of Miami Beach’s Motion for Entitlement to Fees, Costs, and Sanctions, and in support states the following:

INTRODUCTION

As shown below, it is clear and convincing that the City’s attorneys, past and present, have broken the solemn oath above and in turn denied that justice was done. Since the very beginning in 2007, when the first fire violation was posted at plaintiff s property, the City has stubbornly refused to fairly apply the laws and facts in the case of the historic Sadigo Court. Instead, they were only concerned with the end result: forcing a costly fire sprinkler system into a “contributing” historic building, which is exempt from sprinklers as a matter of law. Furthermore, the City also demanded Plaintiff go through the rigorous demands of obtaining a “new” hotel license if it wanted to sell short term rentals. And with the public coffers at their disposal, the City has spent an obscene amount of money to enforce their will.

Plaintiffs reason for going to the recent law firm, SmolkerBartlett(Smolker), are grounded in an equal protection claim that other apartment licensees are being allowed to sell short-term rentals, some with sprinklers, some without; while the Sadigo Court was being forced to obtain a new hotel license and be treated as a “new” hotel for licensing, building and fire code purposes. Correspondences between plaintiff and Smolker prior to them agreeing to represent client centered around the equal protection claim, not the free-speech claims that later engulfed the case. (see Exhibit 1) They later told client the equal protection case would be dull and boring to a jury. Instead, the free-speech angle would be interesting for a jury. They also said juries were not very intelligent as a whole to understand the complex zoning and land-use issues.

The issues in this case are very simple and upfront. The City had to embark on a scheme of smoke and mirrors in order to achieve a win at any and all cost. Their well-executed plan consisted of misrepresenting to the Court the necessity of a hotel license, when the current apartment license is good enough in a RM-2 zoning district. The City then unreasonably demanded that the “contributing” historic building be brought up to the same codes applicable for new hotel construction, which mandated fire sprinklers, as well as widening historic exterior stairwells. They argued their hands are tied because the process they deceptively labeled a “change of occupancy”, demanded it.

This City has a disturbing view of what our government is suppose to stand for. Instead of being a government of the people, by the people and for the people, this government is against its people, or at least the ones that have the moral resolve to challenge its absurd edicts, which in this case involved transient rental s and fire safety. Incredulously, this government will ask a property owner to disregard the rule of law, and only be concerned about the amount of money it will cost to fight their unwarranted demands. And since they have the public coffers, with no accountability, the City will guarantee one will spend much more money fighting them, then adhering to their unnecessary and unlawful demands.

If the facts and law do show that a sprinkler system is not actually mandated, then the City’s underhanded practices to force a historic property owner to install the unnecessary fire system would be tantamount to extortion. This Court even stated during a status hearing midway through the case that if the City got it all wrong on the sprinklers, “..that is just going to facto r into damages if your{Mr. Kairalla} assessment is incorrect.” (see Transcript of Court Hearing-7/2 l/1 4, p. 12). Due to misrepresentations by opposing counsel, this court never had the opportunity to analysis the codes, laws and facts in the case to see if indeed a sprinkler system was ever legally required for the “contributing” historic Sadigo Court.

That being said, the strong parts of plaintiff’s case, negating any talk of the action being frivolous, unreasonable or without foundation are as follows:

1) Plaintiff had given to prior counsel a list of other “comparators”, other apartment licensees selling short-term transient rentals, with or without the so-called requisite fire sprinklers, and not having to undergo a “change of occupancy” to hotel. Plaintiff/client should not be penalized for the failure of counsel to submit a list of comparators.

2) The Sadigo Court did not have to undergo a “change of occupancy” from apartment to hotel, thus triggering FFPC Ch. 28 for “new” hotels , because, if anything, the change would only be a “change of use”. That triggers FFPC Ch. 29 for “existing” hotels , which has significantly different requirements than its Ch. 28 counterpart, such as exempting existing buildings under 75 ft. from the sprinkler requirement. ( theSadigo Court is only 38 feet.)

3) City’s “Exhibit 1 &ll”, obtained through discovery in this case, both show unequivocally that opposing counsel misrepresented when he wrote to this Court there was a sprinkler mandate for all transient facilities, “without exception”. (see Exhibit 2) Opposing counsel’s shameful fear-mongering regarding possibility of guests burning in a future fire should not trump Court’s integrity that mandates it to respect the fire codes and statutes already in place that specifically exempt a building exactly like the historic Sadigo Court.

4) Notwithstanding City’s representations, Florida Statutes 509.215, the authoritative law concerning public lodging establishments and fire sprinklers, with its paragraph #4 exception for “contributing historic structures” from sprinklers, does apply to Sadigo Court. It clearly states the Historic Task Force “shall” accept the SadigoCourt’ s exception from sprinklers. Also contrary to City’s argument, the statute applies to both transient and non-transient public lodging establishments, (see F.S. 509.013(4)(a); F.S. 509.242(1) in Exhibit 11). As this Court recalls, City had been arguing that “FS 509.215 does not apply because the Sadigo was not licensed as a transient public lodging establishment prior to 1994”.

5) The validity of the numerous “Cease & Desist Orders” issued by local fire marshal prior to 2013 are null and void since the local fire marshal does not have authority to issue those orders under FS 633.161. Therefore, all those shutdowns in 2011 were invalid and City should be responsible for those damages.

ARGUMENT

I. There are Many Comparators

Plaintiffs’ case was not frivolous because Plaintiff knew there were many other apartment buildings selling short-term rentals and they were not being harassed like the Sadigo Court by calling it “an illegal hotel”. Plaintiff had even given to prior counsel that list of other “comparators”, other apartment licensees selling short-term transient rentals, with or without the so-called requisite fire sprinklers, and not having to undergo a “change of use” or a “change of occupancy” to hotel. (1)
(1)Besides the apartment licensees listed in Exhibit 2, there are many comparators selling short term rentals without sprinklers, such as the Tradewinds Apt./Hotel(2365 PineTree Dr.) European Guest House(721 Michigan Ave.) and Sobe Bed & Breakfast (1018 Jefferson Ave.) and some with sprinklers, such as the Espanola Suites (443 Espanola Dr.), Metropole Hotel(6 35 Collins Ave.), Sunbrite Apartments(1330 Penn. Ave..) BesaroSuites(255 W. 24 St.) and the Lincoln Arms (1800 James Ave.), which happens to be located in the same RM-2 district as Sadigo Court. There are also some newly renovated hotels such as the Clifton Hotel (1343 Collins Ave), Villa Italia Hotel (354 Washington Ave) selling short-term transient rentals without sprinklers. And of course, we have not even mentioned the numerous units in condos that sell short-term rentals, many that do not have sprinklers.
In other words, the Sadigo never needed a “new” certificate of occupancy for a hotel because its original apartment license is good enough in a RM-2 zoning district to sell short-term rentals. Plaintiff’s counsel in this case, Smolker Bartlett, promised to amend complaint and submit comparators at the appropriate time, however, they never did and it is still a mystery today why they did not. Plaintiff/client should not be penalized for the failure of counsel to submit a list of comparators.

For years, plaintiff had been trying to have his numerous counsels simply submit a list of other apartment licensees that sell short term rentals, but done ever did. Furthermore, no attorney ever objected to the City’s repeatedly misrepresenting the need for a hotel license when they stated to a state court judge:
“Apartment use does not allow transient utilization of the premises.” City Atty. Boksner, p. 20; “Transient would require…..to change their certificate of use as a hotel.” City Atty. Montoya, p. 45; “If he wants to operate as a transient apartment under state law, he also has to operate as a hotel under City law.” City Atty. Held, p. 47 [Transcript of Court Proceedings dated 6/30/11, Eisenberg v. City of Miami Beach, Case No. 11-20234 CA 22. {(App’x II Ex. 9) ECF No. 53-9}]
On June 27, 2011, City gave code compliance violation CE # 11010866- “Correct BTR is for apartments. Owner is utilizing the property as a hotel with transient short-term rentals.”. Clearly in this case and in every other related case, the City does not want to acknowledge the existence of local apartment licensees(BTR #900) that legally operate transient short-term rentals.

Inexplicably, the City has destroyed its credibility by representing that apartment licensees are not allowed to sell short term rentals.

The City also has argued that the Sadigo Court without fire sprinklers is a “imminent danger”. If that were true then why would the late renowned architect, Les Beilinson, a historic specialist, state at a Aug. 19th, 2010 Task Force hearing that: “the Sadigo Court is one of the safest buildings I have ever been in”. If the sprinkler requirement were true, you would not have multiple state DBPR inspectors pass the Sadigo and note in their Lodging Inspection Reports that sprinklers are not applicable. (see Exhibit 16) The City fire marshal has told the plaintiff on many occasions that “the only reason your experts agree with you is because you pay them”, This warped cynicism should not diminish the solid foundation of plaintiff’s case built on expert fire-engineer testimony, fire codes and statutes.

II. It’s a “Change of Use”, not a “Change of Occupancy”

Plaintiff thought the foundation of his case was solid because apartments have a “vested” right to sell short- term rentals in Sadigo’ s RM-2 district. However, if the tribunals think the Sadigo has to be a “hotel, ” then the process is only a “change of use”. That label has beneficial ramifications on the Sadigo Court’s sprinkler issue because “changes of use” trigger FFPC, Ch. 29, and Ch. 29 exempts existing hotel-like structures under 75 feet. The Sadigo is under 38 ft. As proof, the FFPC, Ch. 43.7.1 states: “A change in use that does not involve a change of occupancy shall comply with the requirements applicable to the new use{hotel} in accordance with the applicable existing occupancy chapter {i.e. , Ch. 29}……. ”

Opposing counsel also argues that plaintiff also lost his malpractice case against the original law firm who agreed with the fire marshal that Sadigo Court needed sprinklers. However, the judge in that case tangentially ruled that the process is a “change of use”, having repeated the phrase 7 times in his order. (see Exhibit 5-0rder dated 6/2/14) Opposing counsel cannot have it both ways: He cannot bring in the legal malpractice Order against plaintiff, and still argue it’s a “change of occupancy”. Labels do matter. In fact, it is important to realize that in the January 22, 2014 hearing before this judge, opposing counsel alluded to the change from apartment to hotel as a “change in use”, or “that new use….” ; “another type of use…. “; “change from one use….to another use…..”. Notice how opposing counsel does not mention the word “occupancy” when discussing the process because he knows, as all the experts know, that the change, if anything, is just a “change of use”.

If labels don’t matter, then why would opposing counsel surreptitiously recast the phrase “change of use” to now being a “change of occupancy” later in the case? As discussed above, the answer lies in the fact that “changes of use” exempt existing hotels under 75 feet. as per FFPC, Ch. 29. Instead of acknowledging this innocuous fact, opposing counsel has used its vast financial resources to make it appear it is a “change of occupancy” and then arguing that FFPC, Ch. 28 applies because Sadigo Court must be treated like a “newly” constructed hotel in the eyes of the fire code. This is absolutely false, as the City’s own “Exhibit I ” shows many times the process being a “change of use”. (see Exhibit 2)

Although plaintiff’s counsel originally argued there was neither a change of use, nor a change of occupancy, it is strange and unexplainable why Plaintiff s counsel would, toward the end of case, now advise their client that Sadigo now has to undergo a “Change of Occupancy” to a hotel. (see Exhibit 3- Cremer email dated 10/29/14).

This is particularly unsettling because the City’s expert, SLS Consulting, Inc., the City’s Exhibit 1, which list at least 12 examples of “change of use”, and a Miami Dade County Letter all point to the process, if necessary , being a “change of use”. (see Exhibit 4)

Despite all the evidence above that shows the process, if anything is a “change of use”, the City success fully branded the Sadigo’s process as a “change of occupancy” in all the Task Force, BORA as well as in the most recent Fire Appeals Board hearing. (3 City’s Verified Response, Miami Dade Fire Appeals Board , p.2, 8/2/14) The reason why those results should not count and the reason why petitioner/plaintiff had to withdraw his petition every time is due to the fact that the false “change of occupancy” label was accepted by these tribunals without any open discussion or input from other parties.

III. Florida Statutes 509.215(4) Should Apply to Sadigo Court

Plaintiff s actions were not frivolous nor unreasonable because there is a statute directly on point that should have cleared Sadigo Court from sprinklers, if we are to read these statutes in their plain and obvious meaning. As noted above, the original DBPR hotel inspector, as well as a subsequent inspector, passed the Sadigo Court concerning sprinklers, writing, “N/A” and/or “Yes” on the line-item for compliance. [see both DBPR, Division of Hotels, Lodging Inspection Reports dated 7/10/08 and 5/13/10 (Exhibit 16)] They freely passed Sadigo because they knew all “contributing” historic buildings like the Sadigo Court are exempt from sprinklers as a matter of law, as per 509.215(4). That has been the law of the land since 1983. So it is misleading to say no one ever agreed with Sadigo on the issue of fire sprinklers.

As City’s Exhibit 1 & 2 shows, there are other establishments that are allowed to sell short-term rentals without sprinklers because of the exceptions dictated in F.S. 509.215(1) & (2). However, the Sadigo is not allowed to use the 4th paragraph, written to exempt certain types of historic buildings. One of the reasons the City argues that point is because the Task Force never approved of its petition for exemption from sprinklers. This is a gross misrepresentation of what the role of the Task Force is.

Paragraph #4 of F.S. 509.2 15 mandates: “In attempting to discern legislative intent, we first look to the actual language used in the statute”. Joshua v. City of Gainesville, 768 So.2d 432, 435 (Fla.2000); accord BellSouth Telecomms., Inc. v. Meeks, 863 So.2d 287,289 (Fla.2003). “When the statute is clear and unambiguous, courts will not look behind the statute ‘s plain language for legislative intent or resort to rules of statutory construction to ascertain intent”. See Lee County Elec. Coop..Inc. v. Jacobs, 820 So.2d 297, 303 (Fla.2002). “In such instance, the statute’s plain and ordinary meaning must control, unless this leads to an unreasonable result or a result clearly contrary to legislative intent “. See State v. Burris, 875 So.2d 408, 410 (Fla.2004). When the statutory language is clear, “courts have no occasion to resort to rules of construction – they must read the statute as written, for to do otherwise would constitute an abrogation of legislative power .”Nicoll v. Baker, 668 So.2d 989, 990-9 1 (Fla.1996)
“Special exception to the [sprinkler] provision shall be made for contributing historic structures ……..When recommending alternative systems {to a sprinkler system}, the task force shall consider systems which would not disturb , destroy, or alter the integrity of such historic structures .”
No where does this imply that the Task Force has leeway to approve or disapprove of the exception. Instead, it makes it mandatory for the fire tribunals to accept the “exception” from sprinklers and to recommend alternative systems to a sprinkler system that meet the intent of the NFPA- something they have failed to do in 3 Task Force Hearings, a BORA hearing and/or a Fire Appeals Board hearing. Since the language is so clear and unambiguous, the case law cited [above] does not permit any fire official, nor this Court, to abuse their given right to interpret and instead create new law.

The City is rewriting the Task Force’s mandate without any legislative authority. In other words, if opposing counsel does not like what a statute says, he will just make something up, ala Brian Williams. For example, in the Fire Appeals Board case the City further embellishes its misrepresentation of the law by arguing 509.215 only applies to “transient” facilities licensed before 1994, notwithstanding the law defines a public lodging establishment, as either “transient” or “non-transient” . Opposing counsel then reasons that since Sadigo Court did not get its state transient license until 2008, then 509.215 does not apply. According to the City, the authority for this strange interpretation is a former fire marshal who is no longer employed with the City and a SFM declaratory statement that does not apply to historic buildings, which the Sadigo Court is. The declaratory statement has been overturned by the enactment of FFPC 28.3.5, which does exempt new 3 & 4 story hotels from sprinklers with exterior walkways. Thus, as a matter of law, there is no universal sprinkler mandate, rather just a massive scheme to deceive this Court into thinking there was one.

This Court has previously warned opposing counsel to stop making statements about the correct statutory interpretation s without citing any authority regarding those interpretations. (see Order dated 3/3/14, p. 10, footnote #5)

It appears opposing counsel is cutting and pasting statutes together to create a new statute that fits their needs. The Canons of the Florida Bar, 4-3.3, do not allow officers of the Court to cut and paste statute sections together and pass them off as genuine. Opposing counsel cuts the phrase “transient only” from the Uniform Fire-Safety Standards, F.S. 633.022(1)(b), which only does apply to transient public lodging establishments.

[Opposing counsel does cite In The Matter Of Sonia Machen, Case No.1 05114-09-FM for the proposition that FS 509.215(1)(2) does not apply to Sadigo Court. However, the Statement does say that: “All buildings that are not within those parameters are required to meet Ch. 633…. ” (Id, p. 13) As we now know, F.S. 633 is the FFPC, which is then only Ch. 29, not 28 and Ch. 29 exempts all existing buildings like the Sadigo under 75 feet. So even using the Machen Statement, the Sadigo satisfies it by satisfying FFPC, Ch. 29. Furthermore, on p. 1 of the Dec. Statement it states: “If any of the facts asserted by the Petitioner [fire marshal] are untrue or materially incomplete, the conclusions of the Declaratory Statement could be significantly different. ” The fact that this statement mentions the word “historic” zero times, it is clear that this statement does not apply to historic buildings. Machen failed to account for the historic status of the structure in her analysis and thus should invalidate the use of this statement.]

Opposing counsel then extrapolates the “before 1994” date from F.S. 633.022(2)(b), which allows the local authority to require more strict sprinkler requirements for those buildings built after Jan. 1, 1994, only if a special local sprinkler ordinance is passed. [The City has never passed such an ordinance, thus the Florida Fire Prevention Code is the Uniform Fire-Safety Standard for the state of Florida, as well as the City of Miami Beach. (see F.S. 633.0215(1))] Opposing counsel has then blended these phrases together in their interpretation of FS 509.215.

This cutting and pasting of statutes and representing them as whole in a federal court case has substantially interfered with this Court’s ability to adjudicate the matter fairly. This Court has trusted opposing counsel and that trust has been broken by this unauthorized creation of new law designed to win the case at any and all costs, even if that cost is in the Court’s integrity and fairness in the legal system.

The Legislature has spoken on this issue of historic buildings and fire sprinklers by enacting F.S. 509.2 15(4), with its historic exception to the FS 509.215(2) general sprinkler rule mandated for buildings built before 1983. Although the AHJ does have the last say on interpretation of these codes and statutes, the AHJ does not have authority to rewrite them. The Florida Legislature has also adopted the NFPA’ s 914, Code f or Fire Protection of Historic Structures. The City does not like to talk about this codebook because it also allows historic buildings to utilize many “methods” of compliance, such as the submission of “Equivalency Reports”, in lieu of compliance with any requirement, including even sprinklers. (see NFPA 914, Ch. 8.1) Once again, the City, opposing counsel and/or this Court does not have authority to change the plain and obvious meaning of these “unambiguous” fire codes and statutes that all in one way or another, exempt a historic building just like the Sadigo Court from sprinklers. Therefore, it is the City who does not want to comply with the fire code sections and statutes that exempt the Sadigo Court. If they do not like the outcome of certain laws, then let the fire marshal lobby the State Legislature to change the laws. But for now, the fire marshal must obey the law, not re-write it.

Plaintiffs action s were not frivolous nor without foundation because the Florida Legislature has made it clear that local fire marshals are not agents of the State Fire Marshal’s Office. (see F.S. 633.118, formally 633.121) Given the enormous power and responsibility, the Legislature does not want local fire officials to have to ability to have persons arrested for fire code violations. This is exclusively reserved for the state fire marshal under the state statue 633.228(3), formally 633.161. For good reason, the Florida Legislature only wants State Fire Marshal personnel to be the ones initiating the action to arrest someone. It is general common knowledge that the further down one goes in state and local government, the more likely one is to find people holding technical jobs for which they are not sufficiently qualified by education or experience.

Knowing a local fire official, acting independently of the State Fire Marshal’s Office, could not have the plaintiff arrested for violating local fire dept. “Notices of Violations”, the fire marshal conspired with other local fire marshals to come up with a plan to have plaintiff arrested. (see Exhibit 6- Machen email dated 9/16/1 I-obtained in discovery from City) That conversation resulted in City Fire Marshal continually citing F.S. 633.228 (formerly 633.161) and issuing many “Cease & Desist Orders” pursuant to it, which does allow violators to be arrested. (see FS 633.124) However, the facts show, as evidenced by the email chain, all those knew the authority to “issue” would not extend to the local fire officials and there was no evidence of any coordination with the State Fire Marshal’s Office on the issuance of those Cease & Desist Orders back in 2007-2012.

Additionally, a well-known SFM Declaratory Stmt., In the Matter of Wagner, 128015- 12-FM, confirms the long-standing common knowledge that local fire officials may not issue cease and desist orders under Ch. 633, although they can enforce properly issued Cease & Desist Orders under FS 633 and MD County Sec. 14-44. Even opposing counsel admits that “In re Wagner does fi nd 633.161 inapplicable to municipal officials… “. However, opposing counsel then misrepresents that the local fire marshal has the authority given by other means, such as NFPA 1 Sec. 1.7.6.2,1.7.7,1.7.14. (see Exhibit 11)

A closer look at those sections reveal that all they do is give the AHJ authority to “order person to remove dangerous ..condition…”, (Sec. 1.7.6.2); or “Where dangerous conditions exist….AHJ shall have authority to abate such hazardous conditions…. /I (Sec. 1.7.7); or “The AHJ shall have authority to order an operation or use stopped ….when such building has hazardous conditions… /I ( see Sec. 1.7.14). These are obvious authorities that do not need explaining, however nowhere does it state the AHJ can issue Cease & Desist Orders that subsequently result in the violator being arrested. It is bad faith for opposing counsel to make those representations of a conveyance of authority when in fact they say nothing of the kind. Opposing counsel misrepresents that in addition to the above, the City also has authority to issue Cease & Desist orders as per the City Municipal Code, 50-4(i), and to have persons arrested for fire code violations.

[See Exhibit 7- Ordinance No. 2013-3813, where City unilaterally gave itself the powers the State Legislature said are specifically reserved for State Fire Marshal: the power to issue Cease& Desist Orders pursuant to F.S. 633.]

However, the City modified that municipal code section only in Oct. 2013. Therefore, all those “Cease & Desist Orders” issued prior to 2013, that led to multiple shutdowns of plaintiff s business and his eventual arrest, should be null & void ab initio, as the local fire marshal did not have authority to issue them. Thus, the plaintiffs arrest for violating those “Cease & Desist Orders” should also be null & void, ab initio. So not only did the local fire marshal know her scheme had defects, she carried them out anyways, in such reckless fashion, that opposing counsel had no choice but to deceive this court and suppress this information. Smolker did raise this argument in a Nov. ’14 motion, however it was too little too late, as this Court denied the motion as being moot after it granted City’s motion for final summary judgment.

V. Fire Marshal Does Have Leeway to Exempt Sprinklers

It is also misleading for the City to argue that its hands are tied regarding the mandate of fire sprinklers. This is because the City of Miami Beach never formally enacted any ordinance requiring more strict guidelines for sprinklers. Since Sadigo Court is not a “new” hotel structure, nor undergoing a “change of occupancy”, there is no fire code section that requires sprinklers in an existing 38’ tall hotel-like structure. If there is, then let opposing counsel produce it. Furthermore, F.S. 633.022(2)(b), the Uniform Fire Safety Standards, specifically states that the “local authority may, on a case-by-case basis, in order to meet special situations arising from ….historic….conditions…..authorize equivalent alternative standards”.

Although it is an apartment building by its occupational license, it is an existing hotel, by fire code definition FFPC, Ch. 29 which states: “the term hotel …..shall include a hotel, an inn, a club, a motel, a bed and breakfast, or any other structure meeting the definition of a hotel i. e., transient apartment”}.The Sadigo was built actually as a transient apartment house, hence the original name, Sadigo Court Apartment Hotel, and thus satisfies FFPC Ch. 29, as only existing hotels over 75 feet must be sprinklered.

Also, in FS 509.215(4) , it states the AHJ or fire official shall grant an exception to the fire sprinkler requirement for “contributing” historic structures like the Sadigo Court. In the fire code, the definition of “shall” means a mandatory requirement. (see FFPC Ch. 3.2.6) Ironically, opposing counsel is deceiving this Court into thinking a fire marshal has no leeway into exempting fire sprinklers under the laws and codes. In all actuality, under the FS 509 statute it is the AHJ and tribunal s like the Task Force that have no leeway in denying the exception from sprinklers for a “contributing” historic structure like the Sadigo Court.

VI. Blatant Misrepresentation of Local Ordinance

Plaintiffs actions regarding Count V were not frivolous because the apartment licensees have a “vested right” in an RM-2 zoning district to sell short-term rentals. Additionally, plaintiff cited the new “Vacation Rental Law”, FS 509.032(7)(b), as added proof that it could sell short-term rentals without changing its license because as of the statute’s enactment date of June 2, 2011, there were no city ordinances on the books restricting short-term rentals in any RM-2 district. [Although the new short-term rental statute creates a new category of Transient establishments, “vacation rentals”, the new law generally prohibits municipalities, unless they have a law prior to June2, 2011, from restricting short-term rentals on the basis of occupancy classification, i.e., apartment, bed and breakfast, single-family, rooming house, etc….(see also White Paper: “ShortTerm Rental Housing Restrictions”, Robinson & Cole, LLP, p. 13-14 (2011- Exhibit 12)] However, the City brazenly argued that plaintiffs use of that landmark law is “irrelevant and a classic red-herring” because it already had an ordinance , # 20 I0-3685 , that restricted short-term rental s and existed prior to June 2, 2011. (see Exhibit 8) Remarkably, this in part caused the Court to dismiss plaintiffs Count V when that ordinance clearly does not even apply to Sadigo’s RM-2 zoning district! Thus, the City has repeatedly mislead Courts into believing it already had an ordinance restricting Sadigo’s short-term rentals, when in actuality it never did back then and it does not have one today.

VII. A Lot of Billings, Very Little Results

Although there is no guarantee of success in civil litigation, a plaintiff must be certain his attorneys are not succumbing to the City’s arguments because they would rather treat their client like a ATM, rather than vigorously advocate their client’s positions. Opposing counsel points out that plaintiff had so many lawyers and he still lost every time. And although this may be true, the reason is every lawyer, except one or two, had the propensity to do things harmful to the client, while remarkably always beneficial to the City.

Plaintiffs original lawyers back in 2007 advised him that being a “contributing” historic building is irrelevant when considering sprinklers and there are no statutes, fire code sections or otherwise that can help the historic Sadigo Court stave off a mandate of sprinklers from a local fire marshal, as she is the “Authority Having Jurisdiction”. That same lawyer never advised client that he could engage a fire engineer to submit a sealed and certified “Equivalency Report” that remediates the sprinkler requirement, as per NFPA 914, Code for Historic Structures and/or Florida Building Code, Existing, Ch. 1105/6. It is no coincidence that the City now claims all those Equivalency Reports are unacceptable. It is also no coincidence that opposing counsel now cites these “previous attorney, architect and engineer” as one of the groups who disagreed with their client’s assessment regarding historic buildings and fire sprinklers.

That same firm never advised their client that Sadigo Court can have a State Transient Apartment License, along with its local apartment license, and still sell short-term rentals. Instead, it advised Sadigo that if it wanted to sell short term rentals it would have to undergo a change to hotel and obtain new licenses in order to operate. The City has spent its resources these past eight years backing up the well-connected land-u se law firm, as well as their incorrect determinations regarding, land-use, fire codes and sprinklers. It is palpable that the City and plaintiff could have resolved this back in 2007 if the law firm only honestly advocated on behalf of its client that: 1) the Sadigo Court is an apartment licensee with “vested” rights that allow it to sell short-term rentals in its RM-2 zoning district and 2) it can do so without sprinklers due to the fact that Sadigo is also a “contributing” historic structure, as per FS 509.215(4).

In yet another disappointing display of legal advocacy, another law firm representing client in over two days of hearings, failed to advise the state court judge in the injunctive-relief case involving the City back in 20 II , that the Sadigo is located in a RM-2 zoning district. This is crucial when determining the right to sell short-term rentals. That same lawyer changed plaintiff’s affidavit without informing client and client mistakenly signed it where it stated “after the hearing I protested in a judge’s chamber” . Not only was this not true, but it unfairly cast client as litigious crybaby that rudely protest bad decisions. [see Exhibit 9- Truitt email to client dated 7/12/11] Fortunately, the attorney agreed to change the paragraph in question the next day and this is reflected on the docket sheet in case. However, the damage was already done. The incorrect affidavit still remains on the books and was even sent up on appeal as part of the City’s Appendix to Appellee’s Answer Brief instead of the corrected one.

Also, that same lawyer, despite City attorneys making those previously mentioned false statements regarding apartments inability to sell short-term rental s, failed to lodge one objection. The City, during those same two days, lodged 15 objections. (see Transcripts on 6/30/1 1 & 7/6/11 in Eisenberg v. City of Miami Beach. Case No. 11 -20234 CA 22) Another lawyer filed a crucial memorandum of law too late before a hearing regarding a motion for relief from judgment that the judge refused to read or accept. The memo contained exculpatory evidence showing the Planning Director stating that after the landmark state short-term rental law, F.S. 509.032(7) became effective, it restricts City’s ability to prevent certain apartment licensees from selling short-term rentals.

[12 see Exhibit 11- Memorandum of Law in Support for Motion for Relief from Judgment. Eisenberg Dev. Corp. v. City of Miami Beach, Case No.I I-2 0234 CA 01(15), filed two days before 4/30/13 hearing and was not accepted by Judge Rodriguez. Smolker Bartlett attorneys advised plaintiff to voluntarily dismiss this state court motion for relief under Fl. Rules of Civ. Pro. 1.540(b), which plaintiff did.]

So as one can see, it has been a calamity of errors perpetrated by the numerous attorneys who all thought client had a great case at the onset, only to result in them doing something incompetent and benefitting the City in the end. This was plaintiffs experience dealing with lawyers on this case: they always did things that ended up hurting plaintiff s position or reputation. In good faith, plaintiff has spent hundreds of thousands of dollars, in respect of the litigation process, to have able legal counsel independently evaluate and consult through the issues involving short-term rentals and fire safety. However, all that money still resulted in the City’s campaign of misrepresentation of the statutes, facts and code sections, resulting in unjustified victories at every turn.

CONCLUSION

Despite the City’s arguments that plaintiff s case is frivolous, without any foundation , the above shows the exact opposite. Plaintiffs case was strong because there actually are many comparators, that is apartment licensees selling short-term rentals . The only problem plaintiff had was getting their lawyer, Smolkeret.al., to provide them to this Court. Even if this Court believed that the Sadigo must change into a hotel, that change is only a “change of use”, not a “change of occupancy”. Thus the applicable fire code chapter is Ch. 29, not Ch. 28 and Ch. 29 exempts all existing hotels under 75 ft. So the Sadigo does comply with FFPC. It also complies with the Uniform Fire Safety Standards because under Florida law the uniform Standards are the same standards as the FFPC. (see Rule 69A-43.019- Exhibit 12)

Sadigo also complies with FS 509.215(4) because it is a “contributing” historic structure. City once again misrepresents to this Court that FS 509.215 only applies to transient public lodging establishments that were licensed prior to 1994. As shown above, FS 509.215 applies to both non-transient and transient public lodging establishments. The City also misrepresented to this Court by stating there is a universal sprinkler mandate for all transient establishments, “without exception”. This is absolutely false as shown by the numerous buildings in Exhibits 1& 2 provided by City selling short-term rentals without sprinklers.

Lastly, the City has recklessly issued those Cease & Desist Orders from 2007-2012 without having the proper authority to do so and thus they are null and void, ab initio. With its unlimited public resources, the City has maligned the case and caused the legal process to be unfair. They have created problems for plaintiff when none should have existed. Thus, as the above shows, one does not need to have an expertise in fire sprinklers to know that the Sadigo Court is exempt from sprinklers, as a matter of law. The only problem is that this City does not wish to acknowledge that law and has spent obscene amounts of money to distort the truth in the laws and fire codes. For this reason alone, they clearly are a government not for its people. They should not be permitted to allow their numerous misrepresentations to dictate the narrative of this case. Doing justice in a case and obeying the Canons of the Florida Bar are more important than achieving a win at any and all cost. Therefore, Plaintiff respectfully request this Court to deny Defendant’s motion for entitlement and grant such other relief as the court deems just and appropriate.

CERTIFICATE OF SERVICE

I HEREBY CERT1FY that on 6/4/15, I filed the foregoing with the Clerk of the Court and sent filing to all counsel and parties of record on this 4th day of JUNE, 2015.

Section 1983 of the Ku Klux Klan Act of 1871 provides civil redress for persons who are deprived of their civil rights by persons acting under the color of law, namely government officials and their governments or anyone else acting by their authority. Section 1985 specifically provides for the award of damages to persons deprived of the equal protection of the laws by two or more conspirators.

The history of complaints brought under the acts forged by the 42nd Congress at the close of the Civil War demonstrates that courts would rather not hold any governmental authority liable. Government officials, especially legislators, prosecutors and judges, have a natural prejudice in favor of sovereign immunity, the ancient principle of tyranny that the king is above the law and that he and his ministers can do no wrong unless they specifically waive immunity. Although sovereign immunity may not be mentioned explicitly, the prejudice underlies or is “subconscious” in Section 1983 litigation.

Even though the people are theoretically sovereign in the United States of America, and even though their representatives have waived sovereign immunity for the tortious conduct of governments, it is difficult if not impossible enjoin such conduct or to collect damages. One may argue, for example, that the violation of civil rights is a constitutional tort and not a regular civil tort, so the waiver does not apply.

As for the gross negligence of officials, consider the notorious precedent set by the Supreme Court of Florida in Trianon Park Condominiums v. The City of Hialeah in 1985: a decision that has ever since cultivated negligence in the florid state by sanctioning negligence as within the sovereign discretion of public officials.

The court held that “The discretionary power to enforce compliance with the building code flows from the police power of the state. In that regard, this power is no different from the discretionary power exercised by the police officer on the street in enforcing a criminal statute, the discretionary power exercised by a prosecutor in deciding whether to prosecute, or the discretionary power exercised by a judge in making the determination as to whether to incarcerate a defendant or place him on probation.”

Further, “we find that no statutory duty for the benefit of individual citizens was created by the city’s adoption of the building code, and, therefore, there is no tort liability on the part of the city to the condominium owners for the allegedly negligent exercise of the police power function of enforcing compliance with the building code.

The court thus stripped government officials of their duty, leaving them subject to their whims and prejudices. Discretion is tyranny in the absence of a beneficent will.

As long as courts hew to the public duty principle of no duty to anyone, which they must adhere to once it is mouthed by the high court, their hands are tied by a logically absurd fiction. The Florida decision on sovereign immunity was definitely political; politics distributes hierarchically the absolute power worshiped by patriarchic religion. Still, three justices out of seven dissented in Trianon, with Justices and Ehrlich and Shaw writing dissenting opinions pointing out the inconsistencies in their colleagues’ specious reasoning, which upon careful analysis was really not pretty enough to be called specious. Chief Justice Joseph A. Boyd, Jr., had been the City Attorney of Hialeah, and he had represented, as a County Commissioner, the area that included Hialeah. If he had recused himself, the outcome would have been a 3-3 decision, the tie favoring Trianon instead of Hialeah.

There would have been no dissent if that case had been brought in federal court under Section 1983 for the deprivation of the property rights of the condominium owners whose homes were damaged because the building inspectors in the exercise of the police power did not provide them with equal protection of the laws. Most likely the federal judge would summarily dismiss the case upon the argument of the city attorney that the city was not obliged to protect everyone equally and there was no solid evidence of deliberate discrimination, so the case should never be considered by a jury.

In a humiliating defeat for Rod Eisenberg, who sued the City of Miami Beach in federal court for shutting down his historic Sadigo Court Apartment Hotel in South Beach’s Collins Park area, throwing his guests onto to the street and arresting him in alleged retaliation for his complaints about the corruption and negligence of city officials, U.S. District Court Judge Cecilia M. Altonaga, in an Order dated 16 December 2014, summarily dismissed his complaint on a technicality using what appears to be erroneous reasoning just as his attorneys were preparing to go to trial in January after surviving the city’s previous motion for summary dismissal.

The lack of an automatic fire sprinkler system in the three-story building situated in a commercial district near the beach was the apparent pretext for the closure and prosecution of Eisenberg. It appeared to him, trained as a lawyer but not licensed to practice, that either sprinklers were not required or that a safety “equivalent” compromise was provided by prevailing firesafety standards. The Sadigo was licensed as a transient apartment building by the state, and the city had been accepting resort taxes for that use from him. When he resisted, an alternative channel was allegedly offered to satisfy the officials; impliedly, a bribe, which was a rather common practice if the long history of corruption was any indication. He fought city hall and city hall won. His potential exposure for refusing to install $70,000 of sprinklers to the detriment of the historical characteristics of his building now stands at $4 million.

Judge Altonaga has exhibited the usual prejudices in favor of governmental authority. Florida’s dominating Cuban-American community wanted to see her sitting on the United States Supreme Court. She was reportedly on President George W. Bush’s short list for the nomination, but retiring Justice Sandra Day O’Connor’s seat went to Samuel Alito instead. She made short shrift of Eisenberg’s complaint that he was not afforded the equal protection of the laws, for lack of comparatives showing that others were treated better than he, a showing that is not really necessary when a single case of official abuse of power suffices under some circumstances. The comparatives would have been there if extensive and intelligent research had been made. As every Miami Beach old-timer well knows, the one thing that is consistent in Miami Beach government is the arbitrary and selective enforcement of codes, and that the selection is often made according to the primitive law of retaliation.

But every possible count was rendered moot by Altonaga when she ruled that, according to the so-called common law rigged in previous cases, the city itself did not make the policy he complained of because he could have appealed it to a county fire appeals board that has heard only five cases over five years and has ruled against the petitioner in all but one. Never mind that the county would not be liable under the same principle inasmuch as it is a subsidiary of the state and is governed by state statute, and the state would not be liable because it is afforded sovereign immunity by the U.S. Supreme Court’s misinterpretation of the Eleventh Amendment to the Constitution.

The City of Miami Beach, its fire chief, fire marshal, city magistrate and city commission clearly had ample discretion under state law to set policy and did so, and enforced it much to the detriment of Rod Eisenberg. It should matter not that he would not grease hands, or had a longstanding grudge against the same city attorneys, had sued it before and had otherwise been an official pain in the bureaucratic ass.

Tellingly, the common law that a city is not responsible for doing its duty because it can blame some higher power, a tactic not available to non-governmental entities, was also taken by Altonaga in a 2009 case, Florida Carpenters Regional Council v. City of Miami Beach.

“Municipalities may not be held liable under 42 U.S.C. § 1983 on a respondeat superior theory, but they may be held liable for the execution of a governmental policy or custom. As a result, municipal liability under § 1983 is incurred only where a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.” (Citations omitted)

The Carpenters union made a claim under Section 1983 that its members had been deprived of their First Amendment rights when they demonstrated against hotel policies on the beach and then were harassed and prosecuted for violation of the city’s subjective noise ordinances. Section 1983, as misinterpreted by federal judges, asserts that the municipality being sued set the policy complained of, and not some high power. However, because the Carpenters had failed to clearly and expressly allege any facts that the municipality itself was the policymaker, at least according to Altonaga’s intuition, the claim was held invalid by her as to the form purportedly required by the rules of procedure:

“Here, the Council does not allege action by a City official who has final policymaking authority. Although the Council alleges the City has no authority to revoke a citation after it is issued by a code enforcement officer, the Council also alleges: (1) a special master reviews citationsand rules whether fines should be paid; (2) the special master conducts an evidentiary hearing at which a party may be represented by counsel; and (3) the Council has appealed four of the fivecitations for review by a special master. Based on these allegations, the code enforcement officers are not final policymakers because the citations are subject to meaningful administrative review.”

People who are actually intimate with the City of Miami Beach’s quasi-judicial magistrate or special master agency know very well that it is in fact a policymaking agency of the city government. It is definitely not an independent branch of city government inasmuch as the city’s strong manager/weak mayor charter or council-manager system has no branches, a form that was condemned as “fascistic” by opponents a century ago. Indeed, strong arguments can be made that the city with its special master agency is unconstitutional hence un-American because it does not accord with the political wisdom of the nation’s founders.

According to City Attorney Jose Smith, who was city attorney at the time of the Carpenters suit against the city, the special master is a creature of the city commission and can be abolished by the commission. In other words, the special masters had better do what they are told to do. That city agency has long been a honey pot for case-fixing attorneys. Fines for noise complaints for commercial noise that would put the union megaphones to shame have been routinely reduced or dismissed.

A controversy erupted during the summer of 2012 between the city attorneys and a special master by the name of Babak Movahedi because he refused to go along with the write-down of fines and case dismissals. City Attorney Smith sought his dismissal along with the dismissal of Chief Special Master Abe Laeser, who supported Movahedi, and the installation of Smith’sCuban-American colleague as the new chief. Smith, in response to my objection that his office had dismissed a particular case decided by Movahedi, observed that “Despite what a Special Master might rule, the City ALWAYS retains the inherent, sovereign right, in its discretion, to settle, compromise, or dismiss a case where it is deemed to be in the city’s best interest.”After Jimmy Morales, formerly city attorney for Doral, took over as city manager for the City of Miami Beach, he dismissed the special masters and installed new ones because, he said, he wanted to take the special masters in a “new direction.” Jose Smith resigned as city attorney, and upon his recommendation, Raul Aguila was appointed.

So, yes, city policies are subject to “meaningful review,” meaning that the city reviews it own policies hence remains the policymaker. This sort of absurd question begging is not even specious in the sense of being pretty yet it is part of the gallimaufry common to judge-made common law when authority needs to be absolved of responsibility for doing its duty.

Another distinction Altonaga was careful to take up on cue in the Carpenters case was between “facial” and “as applied.” A particular law may be obviously or on its face unconstitutional, or it may be unconstitutionally applied. Courts are generally reluctant to declare laws unconstitutional as written because to do so may require a great deal of speculation as to the consequences of their application to unknown cases.

The Carpenters alleged that the city’s noise ordinance depended upon subjective assessments of noise levels by code officers as to what was unreasonably loud inasmuch as they took no decibel readings, and, when it was pointed out to an officer that the sound emitted from the union’s megaphone was no louder than music coming from the hotel, the officer said the hotel had a permit for the music, but the union had no permit for its noise.

“The Council also alleges in Count II the City’s enforcement is both arbitrary, because theCouncil must guess at when and how it may use megaphones, and subjective, because the citations describe the noise from the Council’s megaphones as ‘unreasonably loud’ and ‘unnecessary.’ Thus, the Council argues, the City’s ‘enforcement is perhaps better characterized as utterly arbitrary and subjective enforcement.’”

That might be true, but it cannot be allowed by the mind-boggled judge because of some defect in the way it was pled; to wit, that it was seemingly pled as if the noise ordinance were facially unconstitutional instead of unconstitutionally applied, which is the substance of the pleading that the court is not blind to, so on and so forth, anything to dismiss the case and prevent it from going to trial.

“The Council also alleges in Count II the City’s enforcement is both arbitrary, because the Council must guess at when and how it may use megaphones, and subjective, because the citations describe the noise from the Council’s megaphones as “unreasonably loud” and “unnecessary”…..The Council cites no authority for the proposition that it may raise an as-applied challenge for arbitrary and subjective enforcement. All the cases it cites found ordinances facially unconstitutional because they were capable of arbitrary and subjective enforcement…. The Council also argues in its Response, in support of Count II, the ordinance is capable of arbitrary and subjective enforcement. But Count II is an as-applied challenge, not a facialchallenge. The Council has not explained how allegations of arbitrary and subjective enforcement—other than those thatwould be sufficient under Olech–state a claim for an as-applied challenge. In sum, Count II fails to state a claim for arbitrary and subjective enforcement.”

“Olech” was parenthetically mentioned because: “To state a claim for arbitrary enforcement under the equal protection clause, which the Supreme Court has described as a ‘class of one’claim, a plaintiff must allege ‘that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.’ Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). As already discussed, the Council has not alleged that the City treated it differently from a similarly situated individual. Count II fails to state a claim for arbitrary enforcement under Olech.”

A class is needed because it is impossible for government to enforce every law equally, so enforcement often appears to be random, as a warning to violators. And the police power may prioritize enforcement for good reason. Although the members of the Carpenters union are not a class of persons protected by laws against discrimination against race, color, religion, creed, national origin, sex, age, disability, citizenship, genetics, and so on, they may be at least a “class of one” created by judicial fiat. Therefore, according to the judge, the demonstrators must show that they were discriminated against in comparison to other demonstrators. Perhaps others were allowed to demonstrate and raise a racket with megaphones at a hotel elsewhere on the beach. Never mind that non-union noisemakers are seldom cited, and, when they are, there cases are dismissed or fines radically reduced as a matter of city policy.

No doubt a clever lawyer could reasonably counter every reason given by Altonaga for dismissing the Carpenters case, but still she would not allow it to go to trial.

As for the Eisenberg case, Altonaga tossed his equal protection argument, in her first round of dismissals in the Summary Judgement Game, for lack of comparatives. Careful research would probably discover that his case is a case of one, andsimilarly situated persons, except for their amicable relations with the city, were allowed to go Scott Free.

On the other hand, the city government is as notorious for its bungling as its corruption. Laymen might wonder how a jury would decide Eisenberg’s case if officials were not intentionally retaliating against Eisenberg for being a troublemaker or for not paying bribes.

In any case, no doubt Altonaga and her ilk clearly do their level best to make certain his and like cases are not heard by juries no matter what facts and laws are asserted. That is not to say that the majority of jurors selected, given their experience as travelers in need of a safe and relaxing vacation, would not believe that government has an overriding interest in ensuring that vacationers are not disturbed by noisy demonstrators and do not perish in fires due to a lack of fire sprinklers.

Has anything changed other than rampant real estate development in the City of Miami Beach? The jury is still out on that question. However, nothing will deprive it and its officials of sovereign immunity, so they have little to worry about on that score.

David Weston provided the Miami Mirror with hitherto unpublished Miami-Dade Commission on Ethics and Public Trust investigative report number K08-116, in the matter of gifts provided to fire department regulators by an auto show promoter. The dismissive report, dated 4 May 2009, illuminates the institutional blindness of the ethics commission’s investigative staff, especially in respect to the suspicious behavior of officials of the City of Miami Beach.

Weston, who has an engineering degree, was a consulting fire inspector or non-classified employee with the city’s fire department. He was terminated because he persistently complained that the city was failing to collect millions of dollars in fees, a claim that was deemed credible by law enforcement. Some of his claims have more recently been proven true by the Miami Herald even though Jimmy Morales, Esq., the city manager hired on April Fools Day 2013 to curb corruption, did exactly what he promised not to do, and brushed Weston’s allegations under the rug by referring it to the Human Resources Department, whose lawyer peremptorily dismissed the allegations.

Weston, characterizing certain city departments as racketeering operations, has persisted with his investigations and whistle blowing since his termination on the pretext that his investment in a boat docking business in which a private inspector also had an interest violated ethics code. A rumor was circulated among city employees that portrayed him as the leader of a corruption ring, and he says that he was treated at an initial meeting with law enforcement as if he were a criminal for blowing the whistle, yet not one iota of evidence has surfaced that he himself was corrupted in any way; quite to the contrary.

Weston is affluent, and his wife is a lawyer, yet he has thus far declined to bring a defamation suit against the city for refusing to purge his file of its allegedly false and malicious content because, he says, he believes defamation lawsuits are unproductive, he desires to remain on the good side of the government as a private inspector, and he has faith that government on the whole can be reformed with his help to that side.

Sylvia Batista, the author of K08-116, interviewed Weston, and her report mentions that “Weston was forced to resign from his City job on 3/21/08 ostensibly for committing an ethics violation involving his ownership of a business devoted to managing inspections and expediting permits. Weston recalled that in reality he was fired in retaliation for having come forward with information that led to an investigation by the FDLE (Special Agent White) and Miami-Dade County Police Department Public Corruption Bureau (Agent Alex Baldor). The information provided by Weston leading to the investigations involved permit fees not being properly assessed and collected by the City on very large and valuable properties.”

She did not mention in the report, concluded in mid 2009, that the county ethics commission for which she worked had cleared Weston of the ethics charges in a 2 September 2008 letter, in re File RQO 08-36, signed by Executive Director Robert Myers and sent to Weston, with a copy to Jean Olin, special counsel to the City of Miami Beach. In 2013 I provided City Attorney Jose Smith, who was appointed in 2006, with an opportunity to answer Weston’s allegations about the involvement of his legal department in Weston’s wrongful termination. Smith, who would resign in 2014, categorically denied any involvement of his office whatsoever. On 13 March 2013, he reported to the city commission that David Weston was not forced out of employment with the city, that he “was terminated from employment for violating provisions of the Miami Beach Code Article VII Standard of Conduct and several provisions of the Miami-Dade County, Conflict of Interest and Code of Ethics ordinance.”

Batista’s investigative report asserted that information had been received that Sonia Machen, then fire marshal for the city’s fire department, had commanded a firefighter to pick up free tickets to an auto show, to be distributed to fire department employees, contrary to county and city policy prohibiting conflicts of interest. Conflicts of interest tempt officials to use their offices for personal gain, which is the simple definition of public corruption.

Theoretically, if regulators with the fire department did not receive free tickets for themselves, family, and friends, they might over-regulate or wrongly regulate such events. Even worse, firefighters might drag their feet if the premises caught on fire. Of course, ethical fire inspectors and fighters are incorruptible; still it is best not to put temptation in the way and then rely on the consciences of the others; bribes of all kinds including tickets to auto shows should be absolutely prohibited.

A firefighter by the name of Renato Sejas, who happened to be the special events coordinator for the convention center where the annual South Florida Auto Show was to be held, testified that he had encountered the event’s promoter, who asked him if he needed tickets. He replied that the fire department’s no-gift policy, re-published in 2007 by Sonia Machen, fire marshal, prevented him from accepting tickets. Then Machen asked him if he had gotten tickets for the year. He said he told her that he did not understand how tickets could wind up at the fire department, and asked her if she still wanted the tickets. Yes, she wanted him to get the tickets. He asked how many she wanted. Two-hundred would do, she answered, so he got 200 tickets, valued at $2,000, from the promoter, and delivered them to Fire Chief Yuhr, putting them on his desk, saying, according to Chief Yuhr, something like “I don’t agree,” or “I don’t think anybody should accept tickets.” Yuhr said he kept 20 of the tickets for himself and doled out the rest.

The “zero-tolerance” no-gift policy Machen promulgated by email in 2007 was presumably based on the Miami-Dade County Conflict of Interest and Code of Ethics Ordinance Section 2-11.1 (g), which states that no person “shall use or attempt to use his official position to secure special privileges or exemptions for himself or others except as may be specifically permitted by other ordinances and resolutions previously ordained or adopted or hereafter to be ordained or adopted by the Board of County Commissioners.”

The no-gift policy had already been established in a 13 August 2003 interoffice memorandum to all personnel signed by then Fire Chief Floyd Jordan:

“To maintain a high level of public trust an promote confident in our integrity and objectivity in Life Safety, Fire and Code Enforcement, the following directive shall be effective immediately: No member or employee of the Miami Beach Fire Department shall solicit or accept any gift, including money, services, loans, travel, entertainment, hospitality, or alcoholic beverages, which can be reasonably inferred or intended to influence, or reward for any official action taken by an Department employee, in their capacity as Firefighter, Fire Inspector, or Supervisor….”

A separate, 10,000 essay might be drafted elsewhere and entitled ‘The Nature of Reasonable Inference and Intention, and their relation to Prosecutorial Discretion.’ Suffice it to say here that whether or not a proposition is reasonable or not depends on critical scrutiny by the crowd that includes wits as well as dimwits, and not on a single investigator’s conclusion tucked away, out of sight, in a cabinet somewhere pending execution of a document destruction policy.

Sonia Machen told the investigator that she did not intend her no-gifts policy to apply to gifts distributed to employees by the city or their own department, as opposed to being received directly from event promoters. It stands to “reason” that a gift from your employer is not a gift from someone else even though your employer is the intermediary for the gift.

The ethics investigator apparently did not examine a copy of Machen’s 2007 email reiterating the policy. Machen admitted that the policy needed to be clarified in that respect. She explained to the investigator that the fire department received complimentary tickets each year for the auto show as well as for the home show, and, until very recently, for the boat show. The tickets are then distributed amongst fire rescue employees, including regulatory personnel from her department. The distribution of show tickets “has been done for years” in the fire department, she said, which receives 200 complimentary tickets every year and distributes them to its employees.

The lease agreement with the promoters of the show provided that the city was to get 400 tickets. The ethics investigator assumed those tickets were an ethical inducement for it to enter into a contract, not a bribe to the city at large or to the officials to whom the tickets were distributed. The issue, as she saw it, was that the 200 tickets provided for the fire department were over and above the 400 given to the city, so, in the future, tickets for the fire department should be included in the lease agreement. Still, the 200 this year could not be counted as bribes because they were given to the firemen’s boss and not to the firemen as individuals.

That rationale allowed the ethics investigator to dismiss inquiry number K08-116, apparently the 116th K file for the year 2008, and the ethics commission to file it away or brush it under the rug with other K files out of sight of the public instead of publishing it on its the website with C files, which are similar it in the formal sense that an investigation has been conducted and the suspicions dismissed for lack of probable cause.

Incidentally, one might wonder why the city, instead of including tickets in the contract, would not simply buy the tickets and hand them out to employees with their pay checks as bonuses, which is one way free tickets had been previously distributed. Well, the value of the tickets would probably be taxable to the employee. Perhaps a whistleblower might seek advice from the Internal Revenue Service as to whether the tickets to all events in the past years should have been reported as compensation to employees, and, if so, if income taxes should have been withheld and forked over by the city, or paid by the recipients.

By the way, what was the real value of the tickets? How much do people actually pay on the average to see automobiles advertised? The promoter told Batista that he did not know of the no-gift policy, and that the face value of the tickets was $10, but tickets discounted from that amount had been distributed around town. Who knows? Maybe they were worth a dollar. The fire department used to allow employees to accept gifts less than $25, but that amount had since been changed to zero.

Governments may or may not provide for the acceptance of gifts up to certain limits, and may or may not allow gifts of nominal value or trivial gifts to be accepted—would a fire department inspector sell his soul for a coffee mug? For example, take the recently published rules of just a few governments that mention tickets in their rules:

In Connecticut, if you are a public employee you may not accept gifts from entities you do business with or regulate except token items worth $10 or less aggregating $50 or less from a single source. Gifts between supervisors and subordinates must be less than $100.

If employed by New Jersey, you may not accept any gift whatsoever from anyone related to your official duties except gifts of trivial or nominal value offered to the public in general or gifts from supervisors or subordinates. State employees may not attend events in their public capacity unless a legitimate state purpose is served, and attendance must be approved beforehand by the Ethics Liaison Officer.

If you work for New York City, you may not accept gifts aggregating $50 or more from anyone that does or intends to do business with the city. Exceptions include tickets to functions encouraged by city policy, or where your agency has provided written approval on the grounds that your attendance would be in the interests of the city.

As for Washington State, you may not accept gifts when it could be reasonably expected that it would influence your official behavior. Unsolicited gifts of nominal value may be accepted such as flowers, plaques, and refreshments where your attendance is required, etc.

If you work for Maryland, you may not solicit or accept gifts, including gifts to sporting events, meals and alcoholic drinks, with certain exceptions such as gifts of nominal value such as coffee mugs, and, if you are a high official, you may accept tickets to a charitable, cultural or political event. Tickets with a value exceeding $20 must be reported on the recipient’s finance disclosure statement.

In Ohio you may accept gifts of nominal value such as coffee mugs, t-shirts and mouse pads from anyone, but you may not accept gifts of substantial value such as tickets to sporting events from entities doing business with or regulated by your agency.

The City of Miami Beach may want to prohibit all employees from accepting tickets not only from entities that contract with the city but from the city itself unless those tickets are paid for by the employee or included as compensation in payroll reports.

Although the particular issue here at hand is as old as Rome, it illustrates the methods enjoyed by ethics investigators, who are themselves public officials, to excuse what appears to be the unethical conduct of public officials, and even to make sure that inquiries about their conduct never become an published formal finding of no probable cause or a formal complaint filed with the Ethics Commission.

One principle often employed is that IF it is customary for public officials violate an ethics ordinance because no one has complained about it before, THEN they should not be prosecuted when someone finally complains. That is, custom trumps the law; a law unenforced is no law at all. When you get away with wrong long enough, wrong seems right. In a similar way, monumentally absurd Supreme Court decisions are allowed to stand unchallenged for so long that lawyers are leery of challenging them.

As we have seen in her investigation of Machen et al, the ethics investigator seemed to believe that the ordained prohibition should be ignored because it had been the venerable custom to ignore it. However, since the practice looked bad, and condoning it outright would look bad, she suggested strictly adhering to the workaround already worked out to sanction the venerable practice with a disguise: make sure the tickets for the firemen are included in the document leasing the city’s convention center to the promoter.

Another example, one that includes obeisance to tradition, is the opinion of ethics commission advocate Michael Murawski, Esq. in his published investigative report on the Club Madonna Affair. Leroy Griffith, the totally nude club’s owner, said that city officials, most of them lawyers, tried to extort him out of $30,000 to pay the legal fees of Jane Gross, whom he had sued for defamation, she being the wife of a sitting commissioner who opposed his application for a liquor license. Murawski leaned on the venerable tradition that wrongdoing by officials was usually not prosecuted by the commission when done under the advice of attorneys. After all, how would someone know that an act was wrong if the city attorney, the authority on the subject who was himself a defendant, said the act was legal?

I myself was asked at an ethics commission meeting, would I not rely on the advice of an attorney in ethical matters? I certainly would not, and not because I thought an attorney could not get me acquitted if I was charged with an offense, but because I believe sophistries have rendered all too many lawyers institutionally blind to the Good, and that every individual must look for his integrity or integration with the Good in his conscience after perusing the great classical conversation on ethics. Conservative authority does not like skeptics very much although the progress of civilization, if freedom is the ground of being, depends on skepticism outrunning dogmatism in the long run.

The reader may recall a similar case because it received a great deal of fanfare in the press, a 2011 case of allegedly criminal ticketing. There, 26 items of greater value than the 200 items in the Machen case were questioned because the city tried to get them into a contract.

According to a 20 October 2011 report by the Miami Herald, the Florida State Attorney’s office declined to bring criminal charges against Miami Beach City Manager Jorge Gonzalez and his right-hand assistant Hilda Fernandez for demanding 26 tickets to every New World Center event plus $10,000 in tickets to the symphony’s gala fundraising event in return for making a $15 million reimbursement grant. The demand was reportedly made by Mr. Fernandez upon Neisen Kasdin, the New World Symphony’s chairman, who subsequently initiated the complaint. He declined to discuss the closing of the investigation with the Herald, stating that the issue had been worked out with the city. Chief Assistant State Attorney Jose J. Arrojo’s memo stated that a law prohibiting officials from “soliciting or demanding any gift” may have been violated, but he declined to prosecute the case because proof of criminal intent would be improbable given the fact that a longstanding city policy of obtaining tickets for distribution had been condoned in 1992 by the Florida Commission on Ethics, and that the City of Miami Beach had resolved a year later that such tickets were for distribution to the needy.

No doubt needy voters, not to mention wealthy voters, appreciated the expensive tickets to the annual wine and food festival. Hell would have frozen over before I received a ticket from the city manager. A recommendation was made to distribute such tickets randomly via blind drawings.

Apparently, the rulings of county and state ethics commissions, resolutions by city commissions, arbitrary opinions of state attorneys, and the institutional blindness of state governors and attorney generals who refer complaints about the negligence of the former right back to the former, trump criminal laws in the State of Florida, especially in South Florida.

Whatever the laws are, they might not be enforced for one reason or the other. Indeed, residents have long known that the violation of some laws is virtually traditional in Miami Beach, where ordinances are even passed to please people, the commissioners publicly patting themselves on the back with press releases, knowing very well that the ordinances they pass will never be enforced, wherefore disobedience will become a long tradition….

Another principle followed when the truth is outed is to caution officials to avoid similar appearances of impropriety in the future. Appearances of impropriety are best avoided because it reduces the probability that officials might be caught committing improper deeds. Of course illusive casuistry can make seemingly obvious appearances of impropriety appear quite proper. That is why lawyers have been called magicians.

Since the ethics report on the 200 extra tickets Machen wanted for the fire department was not published by the Ethics Commission, its advice was limited to the officials involved instead of warning all county officials, as is done in public Ethics Instruction, as well as to inform the public of what conduct is expected of public officials, and what the appearances of misconduct might be so they can notice it and file complaints accordingly.

According to David Weston, the Machen report was exceedingly difficult to for him obtain even though he was one of the persons interviewed on the matter. Rhonda Sibilia, the communications director for the county ethics commission, informed me that such reports are not posted on her commission’s website because there are too many of them. However, she said, they are available to the public as public records on request.

It follows that whosoever requests particular reports would have to know of their existence beforehand; otherwise, the proceedings of the public inquisitors would never see the light of day.

Mr. Weston was privileged to receive his copy as a PDF free of charge; therefore, since our editor is flat broke, we have asked Mr. Weston to obtain all the so-called K Reports for the last five years in PDF format with optical character recognition facilitated, and turn them over to the Press. That would help analysts illuminate the collective unconscious factor buried in ethics commission files, the submerged basis from which arise the conscious apex: i.e. the proceedings and judgments it deems worthy of being known on its website.